Transcripts (perhaps draft) of the Article 50 ‘Brexit’ Appeal hearings at the Supreme Court

The first is this, my Lord: there is nothing heretical about a contention, particularly in a largely unwritten constitution such as ours, that a constitutional convention may be a constitutional requirement, even if it is not strictly a matter of constitutional law. In fact, my Lords, my Lady, that is an entirely orthodox view and it is covered in paragraphs 20 to 22 of the Lord Advocate's written case and paragraphs 122 to 123 of our written case.

Conventions are non-legal rules but they may nonetheless be rules which are fundamental to the operation of the constitution, and the court has seen the reference to the Canadian case, the Canadian Supreme Court case, re a resolution to amend the constitution, which we respectfully commend on that issue.

The final point, my Lords, is this. There is a temptation to rush to the endpoint on this question and ask what the result would be if Parliament legislated, in the absence of legislative consent from one or more of the devolved legislatures, and indeed that is how the Attorney General for Northern Ireland has framed the issue, perhaps for presentational reasons, but we are, we say, at this stage a long way off that point.

If legislative consent is sought, it may be granted and certainly there would be likely to be, as Mr Gordon says in his submissions, engagement between the executive and Parliament and the devolved administrations. What we are asking the court to do at this stage is simply to clarify whether and how the convention is engaged, and the central case that we make on that, as you will see in our written case, is that this is an obligation on the executive to put Parliament in the position where it is informed on that issue.

My Lords, I am sure that my learned friend the Lord Advocate will have much more to say on that question.

My Lords, I see that I've got through about two-thirds of a speaking note that I had prepared. Time has defeated me. In the admittedly unlikely event that the court is overwhelmed with suspense about what the remainder of what my submissions would be, or if it otherwise thinks it would be helpful, I am happy to provide the full speaking note to the court and to my learned friends.

Keyboard shortcuts

j previous speech k next speech